Police officers routinely walked around you. They said they read your rights when they didn't; or before reading your rights they made some implicit threats. It was all done during the pre-interview, when nothing was taped or recorded-and anything goes-
and usually did.
And along the way, boy did you get some bad press. Just about any two-bit crime Hollywood movie or TV movie of the week usually started with a monster of a criminal being released from prison because some befuddled officer forgot to read you. Those of us who practiced law knew that wasn't the law, but that didn't stop you from being portrayed as some society destroying monster bent on releasing everyone from prison.
And now, the end is near. Read on McDuff:
In State v. Powell, (clink on the link for the case) the Florida Supreme Court held that full and complete Miranda warnings were needed before a confession was admissible. The court disapproved of a pared down "economic version" of the rights.
"You're under arrest. You probably will never see your family or the light of day again unless you speak with us. By the way you can have a two-bit piece of crap lawyer here, but all he wants to do is have your family mortgage your home to hire him. You want that? Or do you want a chance to speak with us and save your miserable butt?"
That version, or some reasonable facsimile, was disapproved of by the Florida Supreme Court.
Quick legal quiz: Which distinguished Justice of the US Supreme Court sits as the designated judge for our Circuit.
And this past Thursday Justice Thomas put the decision of Powell on hold while the court considers this petition to review Powell, and by implication, the scope of Miranda.
And that will be that. Maybe not today, and maybe not tomorrow, but soon, and forever after (thanks to Rick in Casablanca for the rhythm of that last sentence.)
Miranda barely works now. Any homicide cop can and does wiggle around it. And if the Supreme Court approves a watered down version of Miranda, the last vestiges of the Fifth amendment's protections against self incrimination will go out the door and into the cold night of a criminal justice system ruled by the police.
And that's the way most people want it......until the police come for them.
Police officers routinely threaten, berate, trick, scare, and even use physical violence to obtain statements. And judges who are elected and are sensitive to the Hollywood portrayal of Miranda are loathe to risk appearing on the front page of the Herald under this headline "Judge Tosses confession in child murder case!!!!" regardless of the circumstances of the statement.
Query: In a day and age when the availability to digitally record a police officer's full encounter with a suspect (from arrest, to pre-statement, to confession) is as easy as turning on a cell phone and pressing "record", why do police departments and prosecutors resist guidelines that would call for recording all police interactions with a suspect?
Because of this- in a murder case we defended, our client, after being brought back to the scene to recount the circumstances of the murder, grabbed the microphone and there was a scuffle. The microphone when then turned off. But we got the recording, and we got it enhanced- and this is what our client said " Client: "I want to make sure your promise not to arrest me is on tape." Detective: "Turn that damed thing off."
Goodbye Miranda. It was nice knowing you. You tried.
See you in court.
Ps. Don't bother looking around for that case. It happened out of state. A courageous Judge granted the motion to suppress.